One of the most discrete areas of the Immigration and Refugee Protection Act (IRPA) is section 25, Humanitarian and Compassionate (H&C) Applications. Almost anyone can apply to stay in Canada on humanitarian and compassionate grounds. This includes refugee protection claimants whose claims are not approved by the Immigration and Refugee Board. Your application will not prevent or delay your removal from Canada, you must leave on or before the date stated on your removal order. Your application will still be processed even if you have to leave Canada.
The applicant must clearly demonstrate that they would experience unusual and undeserved or disproportionate hardship if they were required to leave Canada. The onus rests entirely upon the applicant to be clear and precise in the submissions as to exactly what hardship(s) he or she would face if not granted the requested exemptions. The application will be assessed on the information the applicant provides and a decision will be made based on the applicant’s personal circumstances and whether these particular circumstances merit humanitarian and compassionate consideration.
Applications to become a permanent resident on humanitarian and compassionate grounds are approved only in exceptional circumstances. It can take many years to process an application. There is no guarantee that your H&C application will be approved. There is no right to appeal to a refused H&C application. You can go for Judicial Review (JR) in the Federal Court of Canada.
Many inland H&C applications are based on a significant degree of economic and cultural establishment as set out in chapter IP 5:
- Does the applicant have a history of stable employment?
- Is there a pattern of sound financial management?
- Has the applicant integrated into the community through community organizations, volunteer or other activities?
- What hardship would occur if the application for a visa exemption were refused?
- The level of inter-dependency;
- Support available in the home country;
- Whether the applicant is able to work; and
- Is there a significant degree of establishment?
A lot of precision is required in filing the H&C application and writing submissions. We can assist you in filing a sensitive and strong application. The IRPA also cites a statutory obligation to take into consideration the best interests of the child when examining and deciding the circumstances of a foreign national making a request under section 25(1) of IRPA. This is one of the strongest factors that can be argued under H&C applications.
The codification of the principle of “best interests of a child” into the legislation does not mean that the interests of the child outweigh all other factors in a case. While factors affecting children should be given substantial weight, the best interests of a child is only one of many important factors that you need to consider when making an H&C decision that directly affects a child.
Generally, factors relating to a child’s emotional, social, cultural and physical welfare should be taken into account when raised. Some examples of factors that applicants may raise include but are not limited to:
- the age of the child
- the level of dependency between the child and the H&C applicant
- the degree of the child’s establishment in Canada
- the child’s links to the country in relation to which the H&C assessment is being considered
- the conditions of that country and the potential impact on the child
- medical issues or special needs the child may have
- the impact to the child’s education
- matters related to the child’s gender
If you think you have a strong basis for an H&C application or would like more information, visit us.
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